STATE OF WEST VIRGINIA HUMAN RIGHTS COMMISSION 215 PROFESSIONAL BUILDING 1036 QUARRIER STREET CHARLESTON, WEST VIRGINIA 25301

Theresa G. Cooper 5318 B Kentucky St. So. Charleston, w~ 25309

Kanawha Co. Sheriff's Dept. Corrections Division 407 Virginia St. E. Charleston, WV 25301

Sharon Mullens Assistant Attorney General 1204 Kanawha Blvd. E. Charleston, WV 25301

Cheryl Fuller/Michelle Rusen Assistant Prosecuting Attorneys Kanawha County Courthouse Charleston, WV 25301

RE: Cooper v. Kanawha County Sheriff's Dept./ Corrections Division ES-375-85

Herewith please find the Order of the WV Human Rights Commission in the above-styled and numbered case.

Pursuant to Article 5, Section 4 of the WV Administra- tive Procedures Act [~VVCode, Chapter 29A, Article 5, Sec- tion 4] any party adversely affected by this final Order may file a petition for judicial review in either the Cir- cuit Court of Kanawha County, WV, or the circuit court of the county wherein the petitioner resides or does business, or with the judge of either in vacation, within thirty (30) days of receipt of this Order. If no appeal is filed by any party within thirty (30) days, the Order is deemed final.

Sincerely yours,

--/~/cJt~-<-f,t-Lc-~ \L~~ ~oward D. Ken~ey;! ~ Executive Director HDK/mst Enclosure COMMlRECEIVED OCT 1419B6

W..'I. HUfl1An RiGHTS CO' .•a.t ._ 5 • l"~

KANAWHA COUNTY SHERIFF'S DEPARTMENT/CORRECTIONS DIVISION,

THEY HAVE THE RIGHT TO JUDICIAL REVIEW.

"7 -\- { / ('. Entered this /<:.' 'day of C,><: /.-

i I '7 --" / /. • / "J . / /": <:. I <.' ,. [ ~ __,.,(._~ L C-.~_. L .----:(.,>:L.;: c;L._ GHATR/V~E-CHAIR WEST VIRGINIA HUMAN RIGHTS CO~~ISSION THERESA G. COOPER and WILLIAM H. PORTERFIELD,

KANAWHA COUNTY SHERIFF'S DEPARTMENT CORRECTIONS DIVISION,

EXAMINER'S RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW employment at the Kanawha County Jail.

8. At the time the Complainant went to work at the

jail, all holding the rank of . They were: Corporal

Roberta Mazella (now holding the rank of Sergeant); Corporal Mary Balcom (now holding the rank of Sergeant); Corporal Janice Susan

Batman-Atkinson; Corporal Ruth Carter; and Corporal Dorothy Singleton. 9. The Complainant was the only female corrections

working in the jail who did not hold the rank of corporal

until Sarah Bilheimer was hired as a corrections officer in July, 1984.

10. In the Kanawha County Jail, corrections officers

were assigned to work various shifts, including; the day shift (from 8 a.m. to 4 p.m.): the afternoon shift (from 4 p.m. to 12

midnight): the midnight shift (from 12 midnight to 8 a.m.): and a

relief shift which included the various shifts indicated but

.~ worked on a rotating, weekly basis. 11. On each shift, a corrections officer was designated as a shift supervisor to act as the responsible person in directing the activities on that shift. 12. The chain of command within the jail was from the

corrections officer to a corporal to Lt. Parks to Chief Jailer Ralph Porterfield to Sheriff Withrow. 13. Initially, upon the employment of the Complainant, the shift supervisor assignments were made on the basis of seniority to the effect that the five female previously

referred to herein acted in a supervisory capacity. 14. During 1983, the shift supervision was changed by Chief Jailer Ralph Porterfield so that male correctional officers of a rank lower than corporal supervised the female corporals and

other on the shift. 15. Complainant did not act as a shift supervisor during her employment due to her position on the seniority list. 16. The duties of the female corrections officers included processing paperwork associated with the booking of prisoners, frisking female prisoners, making security checks in the rear of the jail, working the control booth and performing duties in the rear of the jail associated with both the male and female population of the jail as the existing circumstances warranted.

17. During the first few months of Complainant's employment, she was assigned to work the rear of the jail.

Sometime thereafter, she was told by Chief Porterfield that she was not to work the rear of the jail. 18. No other female officer in the jail received such an order. All other female officers continued to perform duties in the rear of the jail when necessary with the exception of Sarah Bilheimer who was never trained in the procedures used in the rear of the jail. 19. On one occasion in March, 1983, the Complainant insisted on going to the rear of the jail despite Corporal Balcom's order not to do so. 20. The Complainant was instructed by Chief Jailer Ralph Porterfield that she should come directly to him with any problems she had rather than going through the usual chain of

21. Shortly after the Complainant began working in the Kanawha County Jail, in early 1983, she was the subject of approximately thirty-eight (38) complaints and disciplinary write-ups by several superior officers including Corporal Batman-

Atkinson, Corporal Mazella, and Corporal Carter. 22. These write-ups involved infractions of various jail policies and procedures and dealt with the Complainant's resistance to the authority of superior officers within the jail. 23. The affected officers, along with other officers, confronted Sheriff Withrow about their problems with the

Complainant. 24. Although Sheriff Withrow promised to deal with these matters, no disciplinary action was taken, nor was the Complainant ever counseled about her conduct.

25. After taking these complaints concerning the Complainant to Sheriff Withrow, the officers noticed a change in the attitude of Chief Jailer Porterfield towards them. 26. Corporal Roberta Mazella became the subject of an investigation by Cheif Jailer Porterfield after she refused to speak to the Complainant. As the result of this investigation in which Chief Porterfield recommended that she be demoted to the rank of corrections officer, Corporal Mazella received the first reprimand of her fifteen year career with the Kanawha County Sheriff's Department. 27. Corporal Mazella who had worked her entire career in the jail, ultimately requested a transfer to the law enforcement division where she worked as a secretary for several months in early 1984. 28. Also, shortly after speaking to Sheriff Withrow about the Complainant, Corporal Mazella was changed from the day shift to evening shift, and Corporal Batman-Atkinson was changed

from day shift to relief shift; against the desires of both officers.

29. Both officers perceived that these shift changes were the result of Chief Jailer Porterfield's displeasure over their complaints to Sheriff Withrow concerning the Complainant.

30. Corporal Batman-Atkinson, who had been promoted to corporal upon the recommendation of Chief Jailer Porterfield,

requested a transfer from the jail in early 1983 after working there over nine years though she did not want to leave.

31. Corporal Batman-Atkinson became the focus of a disciplinary write-up by Chief Jailer Porterfield who recommended that she be fired.

32. Further, Corporal Ruth Carter received numerous critical write-ups from Chief Jailer Porterfield after she participated in the visit to Sheriff Withrow.

33. Prior to Chief Jailer Porterfield's tenure, Corporal Carter had never been the subject of any discipline. 34. On one occasion, in the presence of Deputy Jim Mangus, Chief Jailer Porterfield refused to accept a medical excuse from Corporal Carter to relieve her from participating in a shooting qualification. Chief Jailer Porterfield then wrote a report to Sheriff Withrow concerning Corporal Carter's poor performance. 35. After seventeen years of working in the Kanawha County Jail, Corporal Carter applied for and received a transfer from the jail in October, 1983 due to what she perceived as harrassment from Chief Jailor Porterfield.

36. Others leaving the jail due to Chief Jailer Porterfield's treatment of them were Jim Mangus, Jess Johnson,

and Corporal Dorothy Singleton. 37. Many of the officers in the jail perceived that the Complainant's relationship with William Porterfield resulted in

the Complainant receiving preferential treatment in the jail from

Chief Jailer Porterfield.

38. During this period, the scheduling of work shifts

within the jail was done by either Lt. Dave Parks with the

approval of Chief Jailer Porterfield or by Chief Jailer Porterfield himself.

~' 39. On October 23, 1983, the Complainant and William

Porterfield, at their request were scheduled to work the relief shift together.

40. This assignment continued for both of them until December 8, 1984. 41. During this period of time, the Complainants were the only two correctional officers whose work assignments remained unchanged. 42. Throughtout their assignment on the relief shift the Complainant and William Porterfield were scheduled to work on exactly the same days at exactly the same times; they were also scheduled off duty on exactly the same days. William Porterfield acted as shift supervisor to Complainant on relief shift. 43. In August, 1983 and in August, 1984, the Complainant and William Porterfield were permitted to take vacation time

together; by being scheduled off at the same time.

44. The work schedules from October 23, 1983 through

December 7, 1984 reflect that the Complainant did not work the

same shift with Tim Clark with the exception of three occasions. 45. Because of the resentment towards the Complainant due to the perceived preferential treatment she was receiving

from Chief Jailer Porterfield, the Complainant had difficulty in

her relationships with most of the officers in the jail.

46. The Complainant herself believed that no one in the jail liked her.

47. There was a great deal of joking, horseplay and pranks among the officers working in the jail. 48. Much of the joking was sexual in nature.

49. Profanity was commonly used by many officers with the exception of officers such as Corporal Carter and Corporal Singleton who were offended by such matters and let others in the jail know that they were so offended.

50. The officers in the jail including Tim Clark, were careful to avoid using profanity in the presence of Corporals Singleton and Carter. The Complainant was not one of those officers in the jail who was known to be easily offended. 51. Indeed, the Complainant initiated discussions about her sexual encounters with Complainant Porterfield. 52. The Complainant and William Porterfield were observed on one occasion laughing about matters portrayed in a pornographic magazine seized from a prisoner. 53. The Complainant once permitted a pornographic film

to be shown in the jail.

54. In early 1984, during the incarceration of inmate

Sharon Wolfgram, an incident involving Corrections Officer Tim

Clark an William Porterfield occurred in the female section of

the jail wherein Tim Clark inquired of William Porterfield

whether or not a rumor circulating in the jail about certain

sexual activity of him and the Complainant was true.

55. William Porterfield later directed Tim Clark to repeat the query to the Complainant. Tim Clark did so.

56. The Complainant laughed and made a retort to this question to Tim Clark during subsequent encounter.

57. At the time of this comment, Tim Clark was not the supervisor of either Complainant.

58. The Complainant reported this comment to Chief Jailer Ralph Porterfield.

59. Chief Jailer Ralph Porterfield spoke to Tim Clark about this matter and received no further complaints from the

Complainant concerning comments made by Tim Clark.

60. None of these comments were ever reported to Lt. Parks or Briles. 61. Such comments were made to no other female officer in the jail by Tim Clark or anyone else. 62. The Complainant alleges that she received certain items while working within the Kanawha County Jail which included a card which referred to her as a "bitch" which was signed by the Kanawha County Sheriff's Department and which made her feel as though no one liked her, a paper bag found in the bathroom lobby

of the jail which stated that "The Lovebirds are in charge, HOw's about a date TC, Bill", a rule book bearing the handwritten

statement "TC sucks" found among a pile of such books located in the control booth, and a pornographic book entitled Seducing Her

Neighbors, found in a file cabinet in the control booth.

63. All of these items were shown to Chief Jailer Ralph

Porterfield.

64. Writing on the walls of the jail was common at the

time of the Complainant's employment in the Kanawha County Jail.

65. These writings included remarks about various members of the staff including Janice Batman-Atkinson, Roberta

Mazella, Joan Bias, Glen Bays, Austin Burke, Ron Crowder, Eric Holmes, Brooks Thompson, Tim Clark, the Complainant and William Porterfield. There was not way to distinguish who was doing these writings. 66. The Complainant also brought the writings concerning her and William Porterfield to the attention of Chief Jailer Porterfield. 67. Chief Jailer Ralph Porterfield conducted two meetings in which the defacement of jail property was discussed.

Chief Jailer Porterfield also circulated a memorandum which warned of possible disciplinary action should any officer by caught defacing jail property. 68. Because of the anonymous nature of these matters, the Chief Jailer could do very little but he did everything that he felt was possible to do in dealing with theses matters. The Complainant and William Porterfield were satisfied with Chief Jailer Porterfield's attempt to deal with these matter.

69. On December 7, 1984, after the firing of three corrections officers Sheriff Withrow took over the scheduling of

shifts within the jail.

70. A memorandum stating that no person could trade shifts without his express permission was circulated.

71. William Porterfield was moved to the midnight shift

and the Complainant remained on the relief shift~ her shift supervisor was Tim Clark.

72. Numerous other corrections officers had their shifts changed at this time by Sheriff Withrow.

73. Sheriff Jones indicated that he would not permit Complainant and William Porterfield to work on the same shift within the jail during his administration because of the security risk he perceived such an arrangement to be. 74. On December 16, 1984, a disagreement between the Complainant and Tim Clark occurred when Tim Clark refused to allow the Complainant to use an inmate to clean the control booth. 75. The Complainant questioned the property of Tim Clark's instruction, and directed Tim Clark to speak to Chief Jailer Porterfield about the matter.

76. On December 20, 1984, the Complainant again used inmate Fugate to clean the control booth~ Tim Clark told her that pursuant to Sheriff Withrow's orders, inmates were not to be used to clean the control booth because of the obvious security risk posed by such practice. On this occasion, the Complainant permitted and directed inmate Fugate to operate the control booth mechanisms which opened security doors in the jail. 77. No other corrections officers used inmates to clean

the control booth. 78. Inmates are not used to clean the control booth under the Jones Administration due to the security risk posed by such practice. 79. On December 27, 1984, the Complainant was working the midnight shift with Tim Clark when Tim Clark directed the

Complainant to go to the rear of the jail while he instructed a new corrections officer, Tony Parog, about the procedures in the control booth. The Complainant remained in the rear of the jail with another officer for an hour and a half, at which time she returned to the booth, reported that she was ill and left. 80. During December, 1984, Sheriff Withrow directed and ordered Lt. Dave Parks to complete evaluations on all members of the jail staff for the years 1983 and 1984. Sheriff Withrow directed Lt. Parks to redo several evaluations completed by Chief Jailer Ralph Porterfield for the year 1984 including evaluations completed on the Complainant and William Porterfield. 81. Lt. Parks complied with this order and evaluated all members of the jail staff. 82. This proved to be difficult inasmuch as these evaluations had to be done in a very short period of time and inasmuch as the evaluations were to have been done every six months rather than for an entire year period at once. 83. On December 30, 1984 the Complainant requested to see evaluations.

84. She refused thereafter to sign the evaluations

because she felt the evaluations were unfair. 85. The evaluations performed by Chief Jailer Ralph Porterfield on the Complainant differed very little from the

evaluations performed by Lt. Dave Parks. The Complainant was

satisfied with the evaluations completed by Chief Jailer

Porterfield. 86. The evaluations performed by Lt. Parks concerning

the Complainant consisted of numerical ratings of various areas

of performance and of comments made by Lt. Parks. The comments are not considered for purposes of promotions; only the numerical

ratings are important in this regard. 87. On December 31, 1984 Corrections Officer Gravely phoned Lt. Parks and requested that she be permitted to switch

shifts with the Complainant. 88. Officer Gravely was scheduled on that day to work the midnight shift with William Porterfield. 89. After conferring with Sheriff Withrow, Lt. Parks denied this request. 90. On December 31, 1984 while on duty, the Complainant

phoned Lt. Parks at his home to complain about the refusal to permit her to trade shifts on that day. The Complainant

indicated that she felt she was being harassed by Lt. Parks because of the evaluation and that she felt that Tim Clark was -~ harrassing her because of the way he was treating her on the shift. The Complainant mentioned the possibility of taking legal action against Lt. Parks.

91. On January 1, 1985, Danny Jones assumed the position of Sheriff of Kanawha County. 92. As part of his duties, Sheriff Jones manages the

Kanawha County Jail. Sheriff Jones did not retain the services of Chief Jailer Ralph Porterfield, but instead appointed Captain

Dawnevyn Briles as Chief Jailer. 93. On January 4, 1985, the Complainant hand-delivered a letter of complaint to Lt. Dave Parks.

94. Lt. Parks did not want to discuss these letters with the complainant and William Porterfield without a third party present because of the threats of legal action made against him by Complainant.

95. Lt. Parks presented these letters to his superior officer, Captain Briles. 96. After assuming the position as Chief Jailer on January 1, 1985 Captain Briles found the morale of the jail staff to be very low. He attempted to interview each employee to discuss the problems and possible solutions to those problems. 97. Captain Briles received many complainants from the officers about the Complainant and William Porterfield. 98. Captain Briles interviewed the Complainant who related to him the incident where Tim Clark had sent her to the rear of the jail. The Complainant indicated to Captain Briles that she felt she was being harrassed, but did not go into the specifics of the statements she alleged had been made to her during the Withrow administration by Tim Clark. 99. Captain Briles had another conversation with the

Complainant on Jaunary 21, 1985 when he contacted her phone to determine when she would be returning to work after the Complainant missed a number of days. The Complainant indicated

that she would be returning to work on January 22, 1985.

100. On January 23, 1985, Captain Briles arranged a meeting with the Complainant, Lt. Parks and himself to discuss the issues raised by the Complainant during his discussions with her. At the meeting, the Complainant's evaluation was discussed.

101. At no time during this meeting did the Complainant offer to produce the items she claimed to have received as previously described in paragragh 62 herein. Nor did she specify the comments co-employee, Tim Clark, allegedly made to her during the Withrow administration. 102. This meeting appeared to Captain Briles and Lt. Parks to conclude to the satisfaction of the Complainant.

103. On January 28, 1985, Captain Briles met with the Complainant to discuss her sick leave. The Complainant became very upset and irrational during this meeting. 104. With respect to complaints made by the Complainant concerning Tim Clark's sending her to the rear of the jail, Captain Briles spoke with Tim Clark about this matter and concluded that his actions in this regard were not improper inasmuch as working the rear of the jail was part of the duties of the Complainant as a corrections officer. 105. Because Complainant had made it clear that she did not care for Officer Clark, Captain Briles moved the Complainant from Tim Clark's shift to the afternoon shift as of January 19,

1985.

106. This change in shift went into effect less than three weeks after Captain Briles assumed command of the jail and after the Complainant had worked only thirteen (13) shifts with

Tim Clark.

107. Throughout her employment at the Kanawha County Jail, the Complainant missed work frequently due to reporting off for illness. In 1983, the Complainant reported off 15 1/2 days due to illness. In 1984, Complainant's sick leave days increased to 23. During the month of January, 1985, Complainant used eight (8) sick days and worked only eleven (11) of the twenty (20) days she was scheduled to work. 108. In August, 1983, the Complainant received a written reprimand from Chief Jailer Porterfield concerning the excessive amount of sick leave she was taking. This written reprimand threatened further disciplinary action if the situation did not improve; no further disciplinary action was taken by Chief Jailer

Porterfield despite the fact that Complainant's sick leave increased in 1984. 109. On January 31, 1985, the Complainant made a written request to Sheriff Danny Jones that she be permitted to take one months medical leave. This request was accompanied by a letter dated Jaunary 28, 1985 from Dr. Ward Harshbarger which stated that the Complainant needed this leave due to her "anxiety tension state". This request was granted by Sheriff Jones. 110. On February 12, 1985 the Complainant made a written request to Sheriff Jones for information concerning the procedure

for her return to work. 111. On February 19, 1985 Sheriff Danny Jones made a written response to the Complainant's letter of February 12, 1985

and requested more information as to the meaning of "anxiety

tension state". 112. The Complainant responded to this request by letter dated February 28, 1985. This response was accompanied by a copy

of the Sheriff's letter of February 19 with comments written on the bottom signed by Dr. Ward Harshbarger.

113. Sheriff Jones responded to this information by

letter dated March 2, 1985 to the Complainant in which he asked for her permission to contact Dr. Harshbarger directly since

Sheriff Jones had been unable to read the comments written by Dr. Harshbarger at the bottom of the February 19 letter.

114. By letter of March 7, 1985, the Complainant gave Sheriff Jones her permission to directly contact Dr. Harshbarger.

115. Sheriff Jones contacted Dr. Harshbarger by letter of March 16, 1985 and requested a clarification of "anxiety tension state". Sheriff Jones also inquired of Dr. Harshbarger whether he would join in Sheriff Jones' recommendation that the Complainant be evaluated by a specialist to determine whether any kind of mental or emotional disorder existed which would hamper the Complainant the performance of her duties. A copy of this letter was provided to the Complainant by Sheriff Jones with an accompanying letter of March 21, 1985. 116. Dr. Harshbarger responded to Sheriff Jones' request by letter dated March 22, 1985 in which Dr. Harshbarger "strongly

recommended" that the Complainant be evaluated by a psychological

specialist. A copy of Dr. Harshbarger's response was provided to

the Complainant along with a letter of March 27, 1985 from

Sheriff Jones instructing the Complainant to contact him for making arrangements for such an evaluation. 117. By letter dated May 20, 1985, the Complainant

informed Sheriff Jones that she would not submit to such an

evaluation. 118. Complainant chose not to undergo the psychological

evaluation requested by Sheriff Jones because she "felt that Sheriff Jones was out of place in asking for one".

119. Sheriff Jones responded to the May 20, 1985

,....---~, correspondence by letter dated May 23, 1985 in which he

reiterated this request for a psychological evaluation. The Complainant had never ·undergone this evaluation and has not returned to work at the Kanawha County Jail despite Sheriff Jones' assurance that the Complainant could return to work whenever she chose to submit to this evaluation. 120. Sheriff Jones requested that the Complainant undergo a psychological evaluation in order to determine the safety of placing her back to work in the hostile and dangerous atmosphere which exists in the Kanawha County Jail. 121. Since January 25, 1985 the Complainant has not resumed her duties as a corrections officer in the Kanawha County Jail despite the fact that Sheriff Jones has kept her position

open. v. Osceola Refining Co., 36 FEP 183 (E.D.Mich. 1984) 3. The Respondent has established that the Complainant's Osceola Refining Co., 36 FEP 183 (E.D.Mich. 1984).

7. The Respondent has shown that all matters reported to Theodore R. Dues, Jr. Hearing Examiner DISCUSSIONS

The overwhelming evidence in this case that the

Complainant's preferential treatment by Chief Porterfield as a

result of her relationship with his son, William, were the roots

.of her problems with her co-workers and their manifested acts of

harrassment toward her. Sharon Mullens, Esq. Assistant Attorney General 1204 Kanawha Boulevard, E. Charleston, WV 25301

Cheryl Fuller/Michelle Rusen Assistant Prosecuting Attorneys Kanawha County Courthouse Charleston, WV 25305

/)/d this ~ day of

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-T-h-e-o-d-o-r-e-R-.-D-u-e-S-,-J-r-.---~ Hearing Examiner